There have been a significant number of employment law issues as a consequence of the Covid-19 pandemic, but one which may soon be about to raise its head in the workplace is what to do about employees who refuse to take up the covid-19 vaccination when their refusal is deemed to put others in the workplace at risk.

The relevant areas of law are:

  1.  Employers’ duties regarding health and safety in the workplace, particularly under the Health and Safety at Work Act.  The general duty under that Act is that employers are responsible, so far as reasonably practicable, for the health and safety of their employees (HSWA ss. 2 and 3).  Breaches of this duty can result in criminal prosecution as well as civil liability. 
  2. Employer’s duties not to discriminate against their employees on the grounds of one of the 9 protected characteristics under the Equality Act 2010.  Belief is a protected characteristic and under the Act, belief is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”. 
  3. Employers also have a duty not to treat those who raise health and safety concerns less favourably or to dismiss them under the Employment Rights Act 1996 and the two-year period of continuous employment requirement for unfair dismissal claims does not apply.
  4. Someone who raises a health and safety concern is likely also protected under whistle-blowing legislation (s103A ERA 1996).

It is easy to see, therefore, that these legal duties may well come into conflict given vaccination against Covid-19 is seen as a major weapon in the war against the virus, yet a significant minority of people hold an “anti-vax” belief.

An example would be if an employee complains to her employer that she does not wish to closely with someone who has refused a vaccination.  This leaves the employer in a difficult position.  On the one hand, if the person with the anti-vax position is held by an employment tribunal (on the particular facts of the case and the specific nature of the beliefs and reasons for them) to have a protected belief, then that employee cannot be dismissed without the risk of a claim of unfair dismissal.  However, the vaccinated employee similarly cannot be dismissed or subjected to any detriment without there being a risk of a whistle-blowing claim.  There is also the requirement of the employer to have a safe place of work (although this can arguably also be brought about by implementing other measures such as hand sanitising, social distancing and mask wearing etc).

In a situation such as this, the employment tribunal would need to decide (a) whether the anti-vax stance is a protected belief and (b) if it is, the balance between the right not to be discriminated against as against the rights and freedoms (as well as other legal obligations) of the discriminator.  Not an easy task.

For employers faced with a situation such as this, there are no easy answers.  The first thing to do, however, is to establish the reason the worker or employee has refused the vaccine.  In order to be a protected belief:

  • – The belief must be genuinely held;
  • – It must be a belief, not an opinion or viewpoint based on the present state of information available;
  • – It must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • – It must attain a certain level of cogency, seriousness, cohesion and importance;
  • – It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others; and
  • – It may be based on science.

Clearly, there are many people who do not wish to have the Covid-19 vaccine because they don’t believe it is safe but there are also those who subscribe to the conspiracy theory that it is actually a 5G chip designed for mind control.  Conspiracy theories have been held in the past to have insufficient coherence and cohesion to qualify as protected beliefs and therefore it’s unlikely that employers would need to worry too much about those individuals.  However, if you believe that vaccines need to be trialled for much longer in order to establish their safety, there is a chance that this would be found to be a protected belief.  However, it was held in the case of McClintock that to establish a belief there needed to be a philosophical viewpoint in which the individual actually believed.  It was held to be not enough to have “an opinion based on some real or perceived logic or based on information or lack of information available”.

These are just a few of the problems that employers (and tribunals) are likely to have to grapple with as the pandemic continues and the vaccination programme is rolled out.  How the already overloaded Tribunals are going to be able to cope with the resultant claims is yet to be determined!